District Court New South Wales Medium Neutral Citation: R v Enosa [2011] NSWDC 139 Hearing dates: 11 March 2011 Decision date: 11 March 2011 Jurisdiction: Criminal Before: Gibson DCJ Decision: (1) The offender is convicted and sentenced to imprisonment for five years. A non-parole period of two years and six months is set. (2) The date of commencement of the sentence is 23 October 2009 and the earliest day upon which the offender will become eligible to be released on parole is 22 April 2012. Catchwords: CRIMINAL LAW - sentence - aggravated break, enter and steal Legislation Cited: Crimes Act 1900 (NSW), ss 86(2)(a) and 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(2) and Pt 4 Div 1A Cases Cited: Georgopoulos v R [2010] NSWCCA 246 R v Kay [2004] NSWCCA 130 R v Pickett [2010] NSWCCA 273 R v Ponfield (1999) 48 NSWLR 327 R v Thompson (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 Thorpe v R [2010] NSWCCA 261 Vu v Regina [2006] NSWCCA 188 Texts Cited: - Category: Sentence Parties: Teata Joe Enosa File Number(s): 2009/235721 Publication restriction: None Judgment 1Teata Joe Enosa has pleaded guilty to a charge of aggravated break, enter and steal. This is an offence against s 112(2) Crimes Act 1900 (NSW) for which the maximum penalty is 20 years, with a standard non-parole period of 5 years. 2The circumstances in which the offence occurred may briefly be stated as follows. On Sunday 8 April 2007 the offender joined 5 to 7 other men who had travelled to the complainant's home in Lidcombe for the purpose of obtaining money from him. 3Earlier that day, before the offender's involvement, a group of men led by a man named Zaydon Mazin El-Majid had held up the complainant at gunpoint and taken him by force first to a factory office and then to his own home. Some time later the offender also entered the complainant's house in the company of several other men, and began looking for valuables. 4When the offender and several others arrived, the complainant was being held, bound and gagged, in another room. While the offender was ransacking the complainant's wardrobe, a co-offender armed with an offensive weapon (a gun) and threatened the complainant that if he did not give him money "you'll die, I'll shoot you". At one point El-Majid obtained a hammer from the kitchen and used it to hit both the complainant's hands. He also twisted the complainant's wrist. The offender did not participate in the assault of the complainant. 5During the incident at the house two gold rings, a necklace, two mobile phones, a video camera, a flat screen television, a DVD player, mechanics' tools, a car stereo system and two razors were stolen. 6Police attended the scene and on 9 April 2007 found a fingerprint matching the offender's left little finger on the exterior of the left edge of a wardrobe door, as well as his palm print on the mirror of another wardrobe door. The offender was not however arrested until 23 October 2009. 7The offender's role in the offence was likened by the Crown to that of a "foot soldier" in that he did not play any role in the restraining or assaulting of the complainant. He was, nevertheless, a participant in a joint criminal enterprise to break and enter the complainant's home to steal, in the company of a co-offender armed with an offensive weapon, and in circumstances where corporal violence was inflicted upon the complainant against his will by others, where the complainant was detained against his will for some hours. 8It is unclear how, when the offender's fingerprints were on record, the fingerprints found at the scene on 7 April 2007 did not result in his arrest prior to 23 October 2009. He was arrested on 23 October 2009 and participated in a record of interview. He was charged with two offences and has remained in custody since that date. 9On the day of the trial, the first of the two offences, a charge under s 86(2)(a) Crimes Act relating to the detaining of the complainant, was no-billed. The trial was adjourned so that the offender could obtain fresh legal representation and two days later he pleaded guilty to the charge that is now before me for sentence. 10Although the trial against the offender did not commence, and no jury was empanelled, and the s 86(2)(a) charge was withdrawn, the offender did not plead guilty until the day of the trial. He is not therefore entitled to the full discount on sentence that would flow from a plea of guilty at the first opportunity: R v Thompson (2000) 49 NSWLR 383. 11Counsel for the offender submitted that the offender was entitled to a lesser percentage, namely 15%, and was entitled to a further discount for contrition. The plea was effectively made at the trial, and the case was not one of such complexity as to justify a significantly higher utilitarian value than otherwise would have been appropriate. I have had regard to the matters advanced on behalf of the offender in support of the appropriateness of a 15% discount, and to the submissions of the Crown. In my opinion the appropriate discount for the utilitarian value of the plea is 10%. 12The offender has previously been convicted for a first offence of driving while disqualified and for two counts of assault occasioning actual bodily harm. The Crown drew my attention to the s 9 bond for two years imposed, as the offender committed the offence while on this bond. The offender was also sentenced to periodic detention, which he completed without default. The offender has no prior convictions for offences of dishonesty such as stealing or break and enter. His criminal record does not disentitle him to leniency. 13I now turn to consideration of the subjective circumstances of the offender, all of which have been taken into account and which are contained in his oral evidence, his letter to the court, references, and the report of Michelle Player, a clinical psychologist. 14The offender, who is now 25 years of age, was born in New Zealand and of Pacific Islander ethnicity. He grew up in comparative poverty. Both parents were heavy drinkers with anger control problems, and he was frequently beaten as a child. When his family emigrated to Australia in 1999, they lived in cramped surroundings with members of the extended family; his parents' marriage broke down and he was largely left in charge of his younger brother with limited adult supervision or assistance. Despite these disruptions and problems at school (including being expelled) he managed to obtain his year 10 certificate and to complete year 11. He obtained reasonably regular employment, in a series of manual labour jobs. 15The offender entered into a relationship with a young woman which resulted in the birth of a son in 2005. The offender was only 19 at the time, and poorly equipped to cope with parental and family responsibilities. The relationship broke up in 2006 and the child's mother obtained an apprehended violence order. He breached that order, and this resulted in the s 9 bond he was serving at the time he committed the offence. Alcohol and drug taking was a factor in the commission of those offences, and a condition of the s 9 bond was the requirement that the offender follow directions concerning drug and alcohol counselling. 16Alcohol was similarly a factor in this offence. The offender told the psychologist that he did not know the main offender, and was intoxicated with alcohol and ecstasy tablets at the time of his offending. That does not mitigate the offence but it provides an explanation for the commission of the offence by the offender. 17The psychologist has indicated that the offender has expressed a sound level of remorse for his offending and demonstrated insight with regard to the impact his crime had upon the victim. In addition, in oral evidence and a letter to the court, the offender expresses remorse and I accept his evidence that he is sorry for what he has done, and anxious to do everything possible to overcome his problems with drugs and alcohol. 18It was submitted that the offender's lack of further criminal record since these events demonstrated that he had turned the corner and establishing a law abiding lifestyle since 2007, and that during the delay between the fingerprints being taken on 9 April 2007 and his arrest on 23 October 2009, he had shown signs of rehabilitation. I am satisfied that he has very good prospects of rehabilitation, given his remorse and his willingness to receive treatment for his drug and alcohol problems, and is unlikely to re-offend in the future if he abstains from drugs and alcohol. I do not consider he is entitled to a discount for any delay in the bringing of charges against him by reason of failure to process the fingerprint identification taken at the time of the original investigation ( R v Kay [2004] NSWCCA 130 at [33] - [34]; Thorpe v R [2010] NSWCCA 261). 19The present offence is objectively most serious. For offences of this type, general deterrence and punishment are of particular importance. Personal deterrence is also of importance having regard to the subjective circumstances of the offender. 20The offender's role was to carry out a robbery in a joint criminal enterprise where one co-offender used a gun. I have taken into account the fact that the offender played no part in any of the acts of violence. The objective seriousness of the facts concerning the conduct of the offender as a whole are that although the accused did not participate in the assault and restraint of the complainant, and there is no evidence that he knew these were occurring, his criminal acts formed part of a joint criminal enterprise in the complainant's house. I take into account that the offender's role was what was put to me as being a "foot soldier" and of less significance than that of the other offenders, but I accept the submission of the Crown that the offender's role in the offence was still significant. In terms of the range of seriousness, I am satisfied that his conduct falls well within the middle range. 21I am satisfied beyond a reasonable doubt that the offender entered the complainant's bedroom with others and participated in the ransacking of his wardrobe for the purpose of stealing items of value. 22I accept the submissions of both counsel that I must be careful not to double count the circumstances of the offence when considering the issue of aggravation, and note their submissions concerning R v Ponfield (1999) 48 NSWLR 327. I am satisfied that the offence was aggravated by reason of being committed while the offender was on a bond. 23In addressing the standard non-parole period for this offence, which is five years (Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 (NSW)), I note the submissions that standard non-parole periods are to be taken as having been intended for a middle-range case where the offender was convicted at trial ( Vu v Regina [2006] NSWCCA 188). When sentencing after a plea, it functions as a reference point, sounding board or guidepost: R v Way (2004) 60 NSWLR 168. In respect of offences to which a standard non-parole period applies, evaluation of where on a scale of objective seriousness an offence sits is necessary: Georgopoulos v R [2010] NSWCCA 246 at [30]-[32]; R v Pickett [2010] NS W CCA 273 at [47] and I am satisfied that his conduct falls within the middle range. 24In the circumstances, having regard to the objective seriousness of the offence in which the offender participated, there is no option but to impose upon the offender a full time custodial sentence. I find that it is an aggravating factor that the offence was committed at a time when the offender was on a bond, but I have taken into account the submissions concerning the circumstances of commission of that earlier offence. 25In regard to whether a finding of special circumstances should be made, I find there are special circumstances warranting the adjustment of a non-parole period having regard to the benefits that will flow to the offender from an extended period of supervision, having particular regard to the contents of the psychologist's report recommendations concerning his drug and alcohol problem and his need for treatment. 26I note that no other persons have been charged with offences arising from these events and there are no issues concerning parity of sentence. 27The offender has been in custody since 23 October 2009 solely for this offence and the sentence will be backdated to that date to take into account this period of custody. 28The offender is convicted and sentenced to imprisonment. 29A non-parole period for two years and six months is set. In accordance with s 47(2) Crimes (Sentencing Procedure) Act the sentence will commence on 23 October 2009. The term of imprisonment is five years. The non-parole period expires on 22 April 2012, when the offender is eligible to be released on parole. 30The standard non-parole period was not imposed having regard to the objective seriousness of the offence, the plea of guilty, the subjective circumstances and the finding of special circumstances. 31Teata Joe Enosa, you are convicted and sentenced to imprisonment for five years with a non-parole period of two years and six months, and you will become eligible to be released on parole on 22 April 2012. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2011